Critical analysis of the 86th amendment to the Constitution of India

The Indian Constitution is one of the most diverse and well-made documents. Since India gained independence in 1947, there have been a plethora of amendments made to the constitution of India.

The founding fathers of the Constituent Assembly led by their chairman; Dr. BR Ambedkar, was well aware of the fact that the Indian Constitution cannot be an exhaustive document due to the changes being faced by the country since gaining independence. There were provisions instilled in the constitution to make amendments to it.

The constitution has been amended for a total of 105 times till date. The latest one being, the amendments to articles 338B, 342A, and 366.[1]

The amendment process of the Indian Constitution has been clearly laid down in Article 368 of the Indian Constitution. Article 368 lays down the procedure which has to be followed for amendment.

For an article to be amended in the constitution, a bill has to be introduced in either house (The Lok Sabha or the Rajya Sabha). It is mandatory that the proposal for amendment should be passed in each House by the majority of the parliamentarians and should be passed by a two-thirds majority of the members present and voting.

If the bill does not meet this requirement, then the bill can be introduced again in the parliament for voting in the subsequent parliamentary sessions. The aim of making regular and necessary changes to the constitution is to better the already laid down provisions as well as to make sure that the provisions are consistent with the rapid changes in the contemporary world.[2]

The landmark case for establishing and validating Article 21A[3] was Mohini Jain vs. State of Karnataka. This was a Supreme Court case. In 1991, Mohini applied for admission in a private medical college in Karnataka to pursue her MBBS degree. A sum of Rs. 60000 was deposited to the college management as tuition fees by Mohini.

At that point of time, Miss Mohini’s father could not afford to pay that amount. In response to this, the medical institute denied her admission. Also, they asked for an additional amount of Rs. 450000. The institute denied the allegations.

The main issue which was contested in the apex court was whether or not the charging of capitation fees is violative of Article 14 and Article 21 of the Indian Constitution. During that point in time, there were no provisions in the constitution that made education for children aged between 6 to 14 years mandatory.[4]

The apex court stated that Part 4 of the constitution which contains the Directive Principles of State Policy made it distinct that the constitutional framers did want the state to provide education for its citizens.[5]

Further, it was held that there was a violation of Article 14[6] and Article 21[7] of the Indian Constitution. Each and every private institution which acts as an agent of the state has to ensure equal access as well as non-discrimination to their higher education services.

Some of the most imperative and well-known amendments are the 26^th amendment, the 36^th amendment, the 42^nd amendment, the 61^st amendment and one of the more recent amendments, the 101^st amendment.

Apart from these the 86^th amendment also brought a significant change to the Indian Constitution. The amendment revolved around the ‘Right to Education’ with a special emphasis on educating the younger generations. For a country to thrive on the global scale, it is extremely important that its youth be educated.

In order to achieve this the government then led by Rajiv Gandhi added Article 21A to the already existing Article 21. Article 21A states that “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”.

Apart from this change, there was also a change in Article 45 of the Directive Principles of State and Article 51[8] of the Fundamental Duties.

The main objective and purpose of the amendment was to guarantee free and compulsory education for children aged 14 years and below. This was also an attempt to bring a formal education system for the children. This is enshrined in Part III[9] of the constitution.

Further, Article 21A also tries to guarantee mandatory and compulsory schooling for children aged below 14 years. This will be provided by the state. If a school is not accessible to a child in his vicinity, then the establishment of one must be sanctioned by the respective government.

The essentiality of primary and basic education for a child in his lifetime cannot be neglected. The amendment not only increases the responsibility of the central government and the states of the country but simultaneously increases the parental responsibility of a parent to send his or her child to school.

The youth of any country will be its future. High literacy rates combined with basic primary education is a must if a country has to unlock its youth’s potential. Moreover, it is extremely important for India as it has the world’s largest youth population (more than 808 million people aged 35 and below).[10]

In the contemporary world scenario, countries like Japan, Italy, Germany, and even the United States of America have an old and aging population. Unlike India, these countries are not gifted with a large youth population. Most of these countries are already developed and may not develop at the rate at which they are currently developing.

In 2016, China removed its one-child policy and replaced it with a two-child policy. The only reason for this transition was to increase the youth population in China. The country feared losing its older citizens would lead to an economic slowdown and would directly affect the country’s economy.

The two-child policy did yield sufficient results but was not that effective. On 31^st May, 2021 Xi Jinping announced the revised three-child policy. This is currently being followed in China.[11] The youth of this country is a blessing in disguise and has a lot of hidden potential with it. It is the right of every child to be educated. Quality education is a part of a variety of international statutes too.

The 86^th Amendment of the Indian Constitution has had a fundamental change in the approach to the education of children aged between 6 to 14 years. There have been future developments with regard to the ‘Right to Education’ in the country. One of the most integral pieces of legislation passed by the government was the Right to Education in 2009.[12]

This is a legislation that has provisions exclusively for the education of children between the age of 6 to 14 years. The amendment is essential and will have a positive effect on society. There are certain sections of society that cannot afford the financial burden of educating their children.

Article 21A along with the Right to Education Act, 2009 can have a fundamental and paramount impact on them and their children. Looking at this from an economic perspective, higher literacy rates mean that more contributions can be made to the economy in the form of employment.

References:

[1] India const. art. 338B, 342A & 366.

[2] India const. art. 368.

[3] India const. art. 21A.

[4] Mohini Jain v. State of Karnataka, (1992) AIR 1858.

[5] India const. pt. 4.

[6] India const. art. 14.

[7] India const. art. 21.

[8] India const. art. 51.

[9] India const. pt. 3.

[10] International Labour Organization, Decent Work for Youth in India, ilo (Last visited September 28, 2022), https://www.ilo.org/newdelhi/info/WCMS_175936/lang–en/index.htm#:~:text=India%20has%20the%20largest%20youth,in%20the%20National%20Youth%20Policy%20).

[11] Tyrene White, Postrevolutionary Mobilization in China: The One-Child Policy Reconsidered, 43 WORLD POL. 53 (1990).

[12] Nisha Thapliyal, Unacknowledged Rights and Unmet Obligations: An Analysis of the 2009 Indian Right to Education Act, 13 Asia-PAC. J. oN HUM. Rts. & L. 65 (2012).

This article has been submitted by Kartik Tripathi, a student at School of Law, Christ (Deemed to be University), Bangalore.